Citation Nr: 0006443
Decision Date: 03/09/00 Archive Date: 03/17/00
DOCKET NO. 94-13 313 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina
THE ISSUE
The propriety of the initial 20 percent evaluation assigned
for the service-connected low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Julie L. Salas, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1984 to
October 1989.
This matter initially came to the Board of Veterans' Appeals
(Board) on appeal of a January 1993 rating decision of the
RO.
In September 1996 and April 1999, the Board had previously
remanded this matter for additional development of the
record.
REMAND
As noted hereinabove, the Board most recently remanded this
matter for additional development of the record in April
1999, to include obtaining all pertinent medical records and
affording the veteran a VA orthopedic examination to
determine the current severity of her service-connected low
back disability.
The RO sent development letters to the veteran in November
and December of 1999 requesting that she provide information
regarding treatment she had received. The initial letter was
returned with a notation indicating that the veteran had
moved and left no forwarding address. The second letter,
mailed to a different address, was returned undeliverable as
the address forwarding order had expired.
A review of the claims folder shows that, in June 1998, the
veteran informed the RO by telephone contact of her new
address. Neither of the above development letters was sent
to this last known address of record.
Consequently, based on a review of the record, it is unclear
whether the RO's correspondence was sent to the correct
address. Hence, the record suggests that the veteran was not
afforded an opportunity to fully support her claim for a
higher initial rating for the service-connected low back
disability.
The RO is advised that the Board is obligated by law to
ensure that the RO complies with its directives, as well as
those of the United States Court of Appeals for Veterans
Claims (Court). The Court has stated that compliance by the
Board or the RO is neither optional nor discretionary. Where
compliance with the remand orders of the Board or the Court
has not been achieved, the Board errs as a matter of law when
it fails to ensure compliance. Stegall v. West, 11 Vet. App.
268 (1998). Therefore, the RO should make further attempts
to contact the veteran in order to fulfill the mandates of
the April 1999 remand.
Furthermore, the Board notes that the Court recently
recognized a distinction between a veteran's dissatisfaction
with an initial rating assigned following a grant of service
connection and a claim for an increased rating of a service-
connected condition. Fenderson v. West, 12 Vet. App. 119
(1999). In the case of an initial rating, separate ratings
can be assigned for separate periods of time-a practice
known as "staged" rating. The RO, following completion of
the necessary development, should consider whether "staged"
rating is warranted here.
Accordingly, the case must be REMANDED to the RO for the
following actions:
1. The RO should take appropriate steps
to contact the veteran in order to obtain
the names and addresses of all health
care providers who have treated her for
her service-connected low back disability
since March 1992. Thereafter, the RO
should obtain legible copies of all
records from any identified treatment
source not currently of record. Once
obtained, all records must be associated
with the claims folder.
2. The veteran should be afforded a VA
orthopedic examination in order to
determine the current severity of the
service-connected low back disability.
The claims folder must be made available
to the examiner prior to the examination.
All indicated tests must be performed and
the examination must include complete
range of motion testing for the lower
back. In addition to noting the range of
motion for the lower back, the examiner
should indicate whether there is any
pain, weakened movement, excess
fatigability, or incoordination on
movement, and whether there is likely to
be additional range of motion loss of the
lower back due to any of the following:
(1) pain on use, including flare-ups; (2)
weakened movement; (3) excess
fatigability; or (4) incoordination.
These determinations should be expressed
in terms of the degree of additional
range of motion loss. The examiner
should also portray the degree of
additional range of motion loss due to
pain on use or during flare-ups. In
addition, the examiner should
specifically comment as to whether the
veteran has intervertebral disc syndrome
that is moderate with recurring attacks,
severe with recurring attacks and
intermittent relief, or pronounced, with
persistent symptoms compatible with
sciatic neuropathy with characteristic
pain and demonstrable muscle spasm,
absent ankle jerk, or other neurological
findings appropriate to the site of a
diseased disc with intermittent relief.
See 38 C.F.R. § 4.71a, Diagnostic Code
5293 (1999).
3. After completion of the requested
development, the RO should again review
the veteran's claim on the basis of all
evidence of record. This should include
consideration of the Court's holdings in
DeLuca v. Brown, 8 Vet. App. 202 (1995)
and whether a staged rating is
applicable, consistent with Fenderson v.
West. If any action taken remains
adverse to the veteran, she and her
representative should be furnished with a
Supplemental Statement of the Case and
afforded a reasonable opportunity to
respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran has the right to
submit additional evidence and argument on the matter or
matters the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999). In taking
this action, the Board implies no conclusion as to any
ultimate outcome warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).